Visy Board Pty Ltd

[2024] FWCA 3341

[2024] FWCA 3341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Board Pty Ltd

(AG2024/3256)

VISY BOARD AND VISY GLAMA (WODONGA) ENTERPRISE AGREEMENT 2024

Graphic Arts
COMMISSIONER MIRABELLA	MELBOURNE, 23 SEPTEMBER 2024

Application for approval of the Visy Board and Visy Glama (Wodonga) Enterprise Agreement 2024.

1. Visy Board Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Visy Board and Visy Glama (Wodonga) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement and covers Visy Board Pty Ltd and Visy Glama Pty Ltd (the Employers).

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 21 May 2024 and the Agreement was made on 13 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. Correspondence was sent to the parties by my chambers on 16 September 2024 raising concerns that the Agreement does not pass the better off overall test because, amongst other things:

·   The Agreement is silent regarding minimum engagement for casual and part-time employees and that employees who would otherwise be covered by the Graphic Arts, Printing and Publishing Award 2020 (the Graphic Arts Award) who regularly work shifts of less than four hours may not be better off overall;

·   Under the Agreement, casual overtime hours are paid as overtime calculated on the casual employee’s hourly rate excluding the 25% loading as opposed to being calculated using the compounding approach as per the Graphic Arts Award;

·   The Agreement appears to be silent regarding weekend penalties, other than overtime performed on weekends, and that employees who work ordinary hours on weekends and who would otherwise be covered by the Graphic Arts Award may not be better off overall; and

·   The Agreement does not provide a minimum engagement for work performed on public holidays and some employees who would otherwise be covered by the Graphic Arts Award and who work less than four hours on public holidays may not be better off overall.

1. On 19 September 2024, the Applicant provided the following submissions:

·   The Employers do not engage any casual employees covered by the Agreement;

·   Their one part-time employee covered by the Agreement does not work ordinary hours of less than four hours on any given day or shift;

·   The Employers do not roster employees covered by the Agreement to work ordinary hours on weekends, save for permanent night shift workers who they concede will receive a smaller payment for two weekend hours, but submit that rates of pay are high enough to compensate for this reduction; and

·   The Employers do not require employees covered by the Graphic Arts Award to work on public holidays for fewer than four hours.

1. I am consequently satisfied that as per s.193A(6A) of the FW Act, casual work, ordinary hours worked on weekends (other than by permanent night shift workers who are compensated by shift allowances and higher rates of pay under the Agreement) and Graphic Arts Award employees working shifts for fewer than four ordinary hours or four hours on a public holiday are not patterns of work that are reasonably foreseeable for the purposes of s.193A(6) of the FW Act and the better off overall test.

1. The Employers have provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

• Clause 7.3(c): Casual conversion

• Clause 15: Carer’s leave

1. However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 23 September 2024 and, in accordance with s.54, will operate from 30 September 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526147  PR779519>

Annexure A